People v Simmons

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[*1] People v Simmons 2018 NY Slip Op 51955(U) Decided on December 17, 2018 Criminal Court Of The City Of New York, Kings County Petersen, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 17, 2018
Criminal Court of the City of New York, Kings County

The People of the State of New York, Plaintiff,


Thomas Simmons, Defendant.


People: Kings County District Attorney's Office by ADA Ilana Atlas

Defendant: The Legal Aid Society by Jill Garcia, Esq.
Kim Petersen, J.

The defendant is charged in this case with one count of Criminal Contempt in the Second Degree (Penal Law § 215.50 [3]).

By notice of motion and supporting affirmation and memorandum of law submitted by Jill Garcia, Esq., dated October 4, 2018, and in an addendum to the motion, filed on December 3, 2018, defendant moves to dismiss the accusatory instrument pursuant to Criminal Procedure Law section 170.30 (1) (a) on the ground that the accusatory instrument is facially insufficient. Specifically, the defendant argues that the accusatory instrument contains conclusory allegations and does not set forth the deponent's basis of knowledge for these allegations.

The People have not filed an affirmation in opposition to the defendant's motion.[FN1] Instead, on November 1, 2018, the People filed and served a superseding information.



On June 3, 2018, defendant was arrested and arraigned on one count of Criminal Contempt in the Second Degree. Specifically, it is alleged in the original accusatory instrument [*2]that on or about June 2, 2018, at approximately 7:10 a.m., at 184 Stuyvesant Avenue, Kings County, New York, the Police Officer Tiffany R. Julien ("deponent") observed the defendant standing at the entrance of the location and that this location is the home of Audrey Davis. The deponent further alleges that the defendant's conduct was in violation of an order of protection issued by the Honorable Consuelo Mallafre-Melendez, Kings County Criminal Court, related to docket number 2018KN014028, which was in effect until September 28, 2018, and directed the defendant, among other things, to stay away from an individual named, "Audrey Davis".

On July 23, 2018, the People filed and served a superseding information charging the defendant with two counts of Criminal Contempt in the Second Degree. The factual allegations in the superseding information appear virtually identical to the original accusatory instrument. However, it also provided that the defendant's actions were also in violation of an order of protection issued by the Honorable Donald Leo, Kings County Criminal Court, related to docket number 2016KN007477, which was in effect until September 18, 2018, and directed the defendant, among other things, to stay away from an individual named, "Audrey Davis". Attached to that superseding information were copies of the two orders of protection issued by Judge Leo and Judge Mallafre.

On November 1, 2018, the People filed and served a second superseding information. In this superseding information, it is alleged that the deponent observed the defendant at the location and that the location is the home of Audrey Davis. It is further alleged that the deponent knew that the location was the home of Audrey Davis because she responded to that location several times prior to the incident date and on each occasion, a female individual identified herself as "Audrey Davis". Deponent also alleged that on at least one occasion, the same female produced a government identification card which stated that the above address belonged to Audrey Davis. The deponent also alleged that she reviewed an official Department of Motor Vehicles abstract of a driving record for Audrey Davis and observed that these records reflected that the location as Audrey Davis' residence. It is noted that this same superseding information also sets forth that the defendant's conduct was in violation of the two criminal court orders of protection that were referenced in the two prior accusatory instruments.




As noted above, the People have filed two superseding informations. Indeed, "the facial sufficiency of the superseding information becomes at issue in any facial sufficiency motion under consideration." (People v Fishman, 44 Misc 3d 1208[A] at *1 [Crim Ct, Kings County 2014] citing People v McDonald, 179 Misc 2d 479, 481 [Crim Ct, NY County 1999].)

However, the second superseding instrument that was filed still contains hearsay allegations. More specifically, the portions of the instrument which state: "each time the same female individual identified herself as Audrey Davis" and "deponent has reviewed an official Department of Motor Vehicles abstract of driving record pertaining to the above named Audrey Davis and observed said Department of Motor Vehicles record to reflect the above address as that of Audrey Davis' [sic]" are statements containing hearsay.

Preliminarily, an individual providing their name or other pedigree information to a police officer does not automatically mean that such a statement is an exception to the hearsay rule. To qualify as a "pedigree exception" to the hearsay rule:

a declaration as to pedigree must have been made before any controversy; by a now dead [*3]declarant; who was related by blood or affinity to the subject person. Moreover, the exception is limited to those cases where pedigree is directly in issue, such as proceedings involving family lineage, descent or succession, and includes only those declarations relating to marriage, birth, death and the dates of such occurrences

(People v Mondon, 129 Misc 2d 13, 18 [Sup Ct, NY County 1985] citing Jerome Prince, Richardson on Evidence §§ 319-329 [Farrell 10th Ed 1985]). "[T]he issue here has nothing at all to do with the 'pedigree exception' to the hearsay rule." (People v Pandiello, 54 Misc 3d 496, 502 [Crim Ct, NY County 2016]).

Therefore, without a supporting deposition from the complainant, Audrey Davis, the information contained within the second superseding instrument pertaining to the complainant stating her name as "Audrey Davis" remains hearsay.

As to the deponent's statement in the second superseding instrument regarding her review of the Department of Motor Vehicle driving abstract, without the submission of a certified Department of Motor Vehicles driving abstract, the observations of the Department of Motor Vehicles records remain hearsay.

CPL 100.50 (1) provides that "[i]f at any time before entry of a plea of guilty to or commencement of a trial of an information or prosecutor's information, another information . . . is filed . . . charging the defendant . . ." (emphasis added). CPL 100.50 (3) states that "[a] misdemeanor complaint must or may be replaced and superseded by an information pursuant to the provisions of section 170.65." The Criminal Procedure Law is void of any language which would allow the People to replace an existing accusatory instrument with a superseding complaint (People v Severino, 47 Misc 3d 1229 [A] at *3 [Crim Ct, NY County 2015]).

Therefore, since the second superseding instrument filed by the People contains hearsay, it does not comport with the requirements set forth in Criminal Procedure Law 100.50. Accordingly, the court cannot accept the second superseding instrument because it is an improper document and the defendant remains charged by the first superseding information (Id.). The court must, therefore, evaluate whether the first superseding information is facially sufficient.


For a misdemeanor information, or any count thereof, to be facially sufficient, the factual portion of the accusatory instrument and any supporting depositions, must contain non-hearsay allegations of an evidentiary nature that provide reasonable cause to believe that the defendant committed the offense or offenses charged. The non-hearsay allegations must establish, if true, every element of the offense. (CPL 100.15 [3]; CPL 100.20; CPL 100.40 [1]; People v Alejandro, 70 NY2d 133, 137 [1987].)

The prima facie case requirement for the facial sufficiency of an information "'is not the same as the burden of proof beyond a reasonable doubt required at trial, nor does it rise to the level of legally sufficient evidence that is necessary to survive a motion to dismiss based on the proof presented at trial" (People v Smalls, 26 NY3d 1064, 1066 [2015] [internal citations omitted]). "So long as the factual allegations of an information give an accused notice sufficient to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense, they should be given a fair and not overly restrictive or technical reading" (People v Casey, 95 NY2d 354, 360 [2000] [internal citations omitted]). However, a conclusory statement in the accusatory instrument, without any evidentiary facts supporting the deponent's basis of knowledge, will not meet the reasonable cause requirement (see People v Dreyden, 15 [*4]NY3d 100, 104 [2010]; People v Dumas, 68 NY2d 729, 731 [1986]).

Defendant claims that the first superseding information does not establish how the officer knew the location that the defendant was allegedly at, was, in fact, the residence of the person the defendant was directed to stay away from (via the issued order of protection). As a result, the first superseding information contains a conclusory statement and is therefore facially insufficient. This Court agrees.

In the instant matter, the first superseding information states that the officer observed the defendant at Audrey Davis's residence, but it does not set forth any factual basis to support that statement.

All that is required is that the People establish some basis for knowing who the complainant is or where she resides in order to establish a violation [of an order of protection]. Under ordinary circumstances, a deponent (typically a police officer or detective) cannot say that the person he observed with the defendant was the protected party without further explanation. Such an allegation is conclusory. Rather, the deponent must set forth some factual basis to support his conclusion that this is the protected party. Requiring the establishment of a factual basis is consistent with our state's jurisprudence in other cases where facts establishing the nature of a particular item in question must be alleged.

(People v Wilson, 58 Misc 3d 535, 541 [Crim Ct, NY County 2017].)

"Accordingly, since the information does not plead facts of an 'evidentiary character,' leading to a reasonable inference that the apartment in which defendant was found was the home or place of business of [the complainant], it is facially insufficient." (People v. Diaz, 48 Misc 3d 1208[A] at *3 [Crim Ct, NY County 2015]; see also People v Friedman, 48 Misc 3d 817 [Crim Ct, Queens County 2015].)

Under these circumstances, the defendant's motion to dismiss the accusatory instrument as facially insufficient is, therefore, granted. The People are granted leave to supersede the accusatory instrument.



For the foregoing reasons, the second superseding accusatory instrument filed by the People is not accepted by the court and the defendant remains charged by the first superseding information.

The defendant's motion to dismiss the first superseding information for facial insufficiency is granted, with leave for the People to supersede.

This constitutes the decision and order of the court.

Dated: December 17, 2018 Brooklyn, New York


Footnote 1:On October 25, 2018, the court inquired as to the status of the People's response, which had been due on October 19, 2018 and was informed by the assigned Assistant District Attorney that she intended to file a superseding information; the People did not address the status of their response. On November 13, 2018, the adjourn date, the court directed the People to file their response by November 26, 2018. To date, the People have not filed a response.